Tsarnaev Never Allowed to Speak with Attorney without FBI Present

Cross-posted at MarathonTrial.

Lost in the mishmash of reporting on the Tsarnaev trial is the fact that Dzhokhar Tsarnaev has never once been allowed to confer with his attorneys in private, without the FBI, law enforcement, and prison officials following every word. The law under which this was possible, called Special Administrative Measures, violates a foundational rule of jurisprudence even older than the US Constitution itself, under the reasoning that terrorist suspects may attempt to pass messages to followers and associates urging them to engage in further terrorist acts.

The effect of the law is to make it impossible for a suspect to tell his attorneys anything he believes would make his jailers angry without certain knowledge that, once the attorneys leave, he will be completely at the mercy of those holding him. Examples of such information would be the involvement of parties in the crime whom the prosecution does not wish to pursue, for whatever reason, or the complicity of the FBI in an entrapment scheme, the past use of which has been well-documented.

Attorney-client privilege, the name of the doctrine which describes the sanctity and importance of the client-attorney relationship to the ability of a suspect to mount a vigorous defense, can be traced back 400 years to English common law.

Ironically, the law was originally conceived to prevent an attorney from having to testify against his own client, in the event that the attorney received incriminating information. The Tsarnaev trial opened with his attorneys saying "It was him."

Skeptics of the government's narrative of the crime, some of whom believe the Tsarnaev brothers were not acting alone, are puzzled by the long list of issues which the defense failed to raise aggressively. Law enforcement revealed that it was interested in a woman who accompanied Tamerlan at the Macy's where he bought five pressure cookers, captured in a store surveillance video. Government reports and the prosecution itself have acknowledged that the bombs were too sophisticated to have been made by amateurs, and would have required training, testing, and the kind of skills that neither Dzhokhar nor Tamerlan had.

Then there is the fact that the Boston FBI already knew who was in the pictures that it released to the public for "help" in identifying the suspects. It had placed Tamerlan, the older brother, on a terrorist watch list in 2011, after Russian intelligence told the FBI that Tamerlan was becoming dangerous. Contrary to the FBI's claim that, bewilderingly, it had stopped tracking and conducting surveillance on Tamerlan after 2011, a Department of Homeland Security congressional oversight committee report states that the FBI's Moscow office had been eavesdropping on communications between Tamerlan and Canadian jihadi William Plotnikov during Tamerlan's trip to Dagestan in 2012.

To be sure, the defense in Dzhokhar Tsarnaev's trial did file a motion requesting records of all interactions between the FBI and the Tsarnaev family between 2011 and the day of the bombing, but it is not known if the defense succeeded in obtaining such documents. The defense has alleged that the FBI was pressuring Tamerlan to become an informant on the Chechen community in the U.S.

But whatever the defense knows or suspects about other involved parties, it is unlikely that it received much help from the person who would know most about it: the defendant Dzhokhar. Because anything Dzhokhar said, the FBI was right there to listen to it.

It has been noted that Dzhokhar's demeanor and personality seem to have changed drastically during his time under Special Administrative Measures, which most often means solitary confinement in a 10 foot by 12 foot cell for 23 hours each day, punctuated only by an hour for exercise in what resembles a dog cage. A very real, but little-remarked-upon, danger of Special Administrative Measures is that if mistreatment, psychological torture, or drugging were being practiced against a prisoner, it would be difficult for that prisoner to inform his lawyer of it during visits.

Evidence of Tsarnaev brothers being trailed by agents before bomb blasts